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Bandas v. United Recovery Service, L.L.C.

United States District Court, N.D. Illinois, Eastern Division

November 8, 2017

FRANK BANDAS, Plaintiff,
v.
UNITED RECOVERY SERVICE, L.L.C., Defendant.

          MEMORANDUM OPINION AND ORDER

          Virginia M. Kendall United States District Judge

         After receiving a collection letter pertaining to a debt he owed of $94.00 for medical services, Plaintiff Frank Bandas's filed his Complaint under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (FDCPA) and the Illinois Collection Agency Act, 225 ILCS 425, et seq. (ICAA), against Defendant, United Recovery Service, LLC (URS). (Dkt. 1.) Defendant filed a Motion to Dismiss Plaintiff's Complaint for failure to state a claim. [13]. The Motion is denied in part and granted in part. Because Plaintiff has sufficiently alleged that the collection letter potentially misleads an unsophisticated consumer, the Motion is denied with respect to the FDCPA claims. However, Plaintiff fails to allege actual damages, and therefore the Motion is granted with respect to the ICAA claim and that claim is dismissed.

         BACKGROUND

         The Court takes the following allegations from Plaintiff's Complaint and treats them as true for the purposes of a motion to dismiss. See Bell Atlantic, Corp. v. Twombly, 550 U.S. 544, 545 (2007). Plaintiff filed his Complaint under the FDCPA and ICAA. Plaintiff incurred a debt for $94 in medical services but due to his financial circumstances, he was unable to pay and the debt went into default. (Id. ¶¶ 11, 12; Dkt. 1-1, Exhibit C.) Advocate Medical subsequently assigned the debt to URS. (Id. ¶ 13; Dkt. 1-1, Exhibit C.) According to the Complaint, “URS is engaged in the business of a collection agency, using the mails and telephone to collect consumer debts originally owed to others.” (Id. ¶ 8.) On or about April 20, 2016, URS sent a letter regarding the debt:

“Please receive and accept this letter in the spirit in which it is intended. We do not seek to create a climate of argument and threat but merely to state our position in as factual a manner as possible. Our client claims a debt is due and owing from you; they have attempted to resolve this between them and you with no success. Our office has been brought into the picture and we have done everything we can think of to convince you to pay this claim; our file indicates that you have the means to pay but that you will not pay.
We wish to make this appeal to you as one reasonable party to another. Send us your full payment today or contact this office at once to make suitable payment arrangements so that no further procedures need to be taken in this matter.
This is our third attempt to have you voluntarily resolve this claim. We seek your cooperation now!
Please contact our office if you have any questions about this claim or to make suitable arrangement for payment(s). …
THIS LETTER IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE!

(Dkt. 1, Ex. C). Plaintiff alleges that the “only legal alternative to having Plaintiff voluntarily pay the debt is to sue Plaintiff for payment.” (Dkt. 1 ¶ 20.) Therefore, he believed that URS was threatening a lawsuit against him. (Id. ¶ 21.) Plaintiff also alleges that “URS and its client, Advocate Medical, do not sue consumers in Cook County for past due debts.” (Id. ¶ 22.) Nevertheless, Bandas alleges, URS made this “false threat in an attempt to coerce Plaintiff into paying[.]” (Id. ¶ 24.) Plaintiff “became afraid and felt anxiety at the prospect of being sued.” (Id. ¶ 26.)

         LEGAL STANDARD

         To survive a 12(b)(6) challenge, a complaint must contain sufficient factual matter to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint contains a claim that is plausible on its face if it supports a reasonable inference that the defendant is liable for the harm. Id. This Court dismisses claims only if the plaintiff would not be entitled to relief under any set of facts that could be proved consistent with the allegations. See Visiting Nurses Ass'n of Southwestern Ind., Inc. v. Shalala, 213 F.3d 352, 354 (7th Cir. 2000). The Court relies on its “judicial experience and common sense” in making an assessment of the plausibility of the claims. McCauley v. City of Chi., 671 F.3d 611, 616 (7th Cir. 2011) (quoting Iqbal, 556 U.S. at 679). For purposes of this motion, this Court draws all reasonable inferences in Plaintiffs' favor. See Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013).

         DISCUSSION

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